Calcutta High Court (Appellete Side)
Sushil Kumar Sarkar & Ors vs State Of West Bengal on 15 March, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi C.R.A. 334 of 1985 Sushil Kumar Sarkar & Ors.
-Vs-
State of West Bengal
Mr. Saryati Datta ... appears as Amicus Curiae
For the State : Mr. Amartya Ghosh
Heard on : 15.03.2016
Judgement on: 15.03.2016
Joymalya Bagchi, J. :-
Order dated 23rd August, 1985 passed by the learned Additional Sessions Judge, 1st Court, West Dinajpur at Balurghat convicting the appellants for commission of offence punishable under Sections 395/397 IPC and sentencing them to suffer rigorous imprisonment for seven years each has been assailed.
The prosecution case, as alleged against the appellants, is to the effect that in the night of 9th August, 1980, between 22:30 to 23 hrs., 14 to 15 unknown persons entered into the house of Ahindra Kundu (PW1) in village: Suihari, P.S. Tapan and committed dacoity therein. In the course of committing dacoity, the dacoits also assaulted his elder brother, PW4 and his wife causing grievous injury on them. The dacoits were armed with weapons like lathi, dagger and took away valuable property from his house worth more than Rs.3,000/- comprising of radio, gold ornaments, wrist watch, kasar utensils etc. A written information was submitted by PW1 to the police authoritie and investigation was commenced. In the course of investigation, appellants were arrested and witnesses identified the appellants during Test Identification Parade. Medical report of the assaulted persons were also collected. Charge-sheet was filed against the appellants under Sections 395/397 IPC. The offence being a sessions triable one, the case was committed by the Court of Sessions, West Dinajpur and transferred to the court of the Additional Sessions Judge, 1st Court, West Dinajpur for trial and disposal. Charge was framed under Sections 395/397 IPC against the appellants. The appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as nine witnesses. The defence, however, did not examine any witness but sought to probabilise its defence through effective cross-examination. Upon conclusion of trial, by the judgement and order dated 23rd August, 1985, the trial court convicted and sentenced the appellants, as aforesaid.
PW1 is the de-facto complainant in the instant case. He stated that on 9th August, 1980, at around 10:30 P.M., there was a dacoity in his house. He was sleeping at that time and he woke up hearing the sounds of the dacoits entering through his elder brother's room and they also assaulted his elder brother and other family members. He stated that he and his brothers lived in a joint mess. The dacoits broke the door with a dheki and from the light of the lantern burning in his room, he could identify the dacoits. The dacoits took away utensils, dresses and cash money from his room and also entered the room of his brother, Dhiraj Ch. Kundu (PW2) and took away dresses, utensils and money from his room too. Thereafter, the dacoits left the place. He was able to identify three of the dacoits. He stated that his elder brother and his wife were injured at the hands of the dacoits and were treated in hospital. On the next day, Officer-in-charge, Tapan Police Station came to their residence and he lodged a written complaint of the incident which was treated as FIR (Exhibit-2). He identified the appellants in the course of Test Identification Parade at Balurghat sub-jail. He also identified them in court. In cross- examination, he stated that his brother (PW2) took his elder brother, PW4 and his wife to the hospital while he went to his place of employment. It further transpired in cross- examination that the appellants are members of the same village but PW1 denied that he knew the appellants. He has also denied that he has implicated the appellants due to previous enmity with the appellant no.1, Sushil Kumar Sarkar.
PW2, Dhiraj Ch. Kundu is the brother of PW1. He stated that on 9th August, 1980, at around 10:30 P.M., there was a dacoity in their house. He was working in his room when the dacoits entered the room of his elder brother, Anukul Chandra Kundu (PW4). PW2 deposed that the dacoits were there for half an hour in their house and they left with gold ornaments, cash, utensils clothings etc. He also deposed that the dacoits had lathi and axe. He stated that his niece, PW3 and brother, Ahindra, PW1 told him that they had seen the dacoits during dacoity. He stated that he took PW4 and wife of PW1 to hospital on the next day. He signed the seizure list prepared by the police during investigation.
PW3 is the niece of PW1 and daughter of PW4. She stated that on the date of occurrence, she was unmarried and was residing at her father's house. At the time of dacoity, she was sleeping in the bedroom of her father, PW4 (Anukul Chandra Kundu). Dacoits entered their room. Upon entering the room, the dacoits hit her father and her mother. Her mother was seriously injured on the forehead and her father was also hit on the scalp. The dacoits broke open the trunks and took away their belongings. She could identify the dacoits by the lantern burning in their room. She went to Balurghat sub-jail and identified the dacoits in the course of Test Identification Parade. In cross-examination, she stated that she had shown the hurricane lantern which was burning in her room at the time of dacoity to the Investigating Officer. She further stated that she could not say how many families lived in the village and that she did not go out of her house often.
PW4 is the elder brother of PW1. He has corroborated the evidences of PW1, PW2 and PW3. He also stated that he suffered injury in course of dacoity and thereafter, lost his senses.
PW5 is one of the investigating officers who concluded the investigation and submitted charge-sheet in the instant case.
PW6 is the medical officer who examined PW4 and found various injuries on his person.
PW7 is the Judicial Magistrate who conducted the Test Identification Parade in this case. He deposed that PWs 1 to 3 identified the appellants in the course of Test Identification Parade. In cross-examination, he stated that there was no note that the under trial prisoners were mixed up bearded persons or tribals.
PW8 drew the formal FIR (Exhibit-4).
PW9 is the investigating officer of the case. He prepared the seizure list during the investigation. He arrested the accused persons and conducted the Test Identification Parade.
Mr. Saryati Datta, learned Amicus Curiae submitted that while the evidence of the prosecution witnesses was to the effect that there were 14 to 15 unknown persons who committed dacoity, only three appellants were identified. There was no seizure of the lantern by which the witnesses claimed to have identified the appellants during the dacoity. There is no recovery from the possession of the appellants. On the other hand, there is suggestion that the appellants being co-villagers were known to the witnesses and had been falsely implicated in the instant case out of private grudge. The Test Identification Parade was doubtful. No bearded or tribal persons were mixed with the appellants during such examination. PWs 2 and 4 did not identify the appellants in the Test Identification Parade. PW4 did not narrate the dacoity to PW1 during his medical examination. He accordingly submitted that the evidence of the prosecution witnesses who are interested witnesses should not be believed and the appellants ought to be acquitted.
Mr. Amartya Ghosh, learned Government advocate, on the other hand, submitted that the evidence of PWs 1 to 4 are consistent as to the role of the appellants in the dacoity. They were identified by the prosecution witnesses, both in court and in the Test Identification Parade. There is no irregularity in the holding of the Test Identification Parade and accordingly, no interference is necessitated with the order of conviction and sentence.
I have perused the evidence on record. Consistent evidence of PWs 1 to 4 is to the effect that on 9th August, 1980, between 10:30 to 11 P.M., there was a dacoity committed at their residence by 14 to 15 unknown persons. The dacoits forcibly entered the house of PW1 and took away articles from the rooms of the PWs 1 to 4. The appellants have been identified by PWs 1 and 3 in course of Test Identification Parade and also in court. Such identification has been made by the light of the lantern which was burning in their rooms. It has been argued that the prosecution case suffers a dent as the lanterns have not been seized during investigation. Lanterns are ordinarily available in every village house and therefore, non-seizure of lantern cannot throw a serious doubt as to the truthfulness of the prosecution case. That apart, it is the evidence of PW3 in her cross-examination that lantern was shown to the investigating officer during investigation. The remisness on the part of such investigating agency not to seize the lantern therefore, cannot stand in the way of reliability of the prosecution witnesses in proving the prosecution case against the appellants. It has been argued that the appellants were co-villagers and therefore, they were known to the witnesses and have been falsely implicated in the instant case out of private grudge against the appellant no.1, Sushil Kumar Sarkar. There is nothing on record to establish that there was any enmity between the family of the PW1 and the appellant no.1. There is also no evidence on record to show that the appellants were known to each other. Merely because the appellants and the prosecution witnesses were from the same village, it would be difficult to infer on such circumstance simpliciter to come to a reasonable conclusion that they were known to each other. Defence has not been able to probabilise that all the villagers knew each other or that the appellants were known to the prosecution witnesses. In fact, PW3, a vital witness, who identified the appellants both in court and Test Identification Parade, had expressly deposed that she was an unmarried girl and did not know the names of the villagers and did not go out of the house often.
Accordingly, I am unable to accept the defence version that the appellants were known to the witnesses beforehand and were falsely implicated in the instant case.
Coming to the Test Identification Parade, I am of the opinion that the same was conducted in a fair manner and PWs 1 and 3 duly identified the appellants during the Test Identification Parade as well as in court. Merely because, no tribal or bearded persons were mixed up with the appellants does not give rise to serious infirmity in the process of identification particularly in the light of the consistent evidence on record that the appellants were at the place of occurrence for about half an hour and had been seen by the witnesses by the light of the lantern. Injuries upon PW4 have also been proved by PW6. Evidence of the witnesses also proved that the dacoity was committed by 14 to 15 persons including the appellants establishing the ingredients of the said offence.
Accordingly, I am of the opinion that the appellants alongwith other members of the party being more than five in number committed dacoity at the residence of PW1 and have been rightly convicted. I also do not find any reason to interfere with the sentence imposed upon the appellants inasmuch as minimum sentence has been imposed upon them in view of the statutory minimum limit laid down under Section 397 IPC.
Hence, I do not find any merit in the instant appeal and the same is accordingly, rejected.
The bail bonds of the appellants are cancelled. The appellants are directed to surrender forthwith before the learned trial court to serve out the sentence. The lower court records with a copy of this judgement be sent down to the learned trial court for necessary action and execution of the sentence in accordance with law.
Detention suffered by the appellants, during investigation, enquiry, trial and the pendency of the appeal shall be set off against the substantive sentence in terms of Section 428 of the Code of Criminal Procedure.
I record my appreciation for the assistance rendered by Mr. Saryati Datta, learned advocate, as Amicus Curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) akd